COMPAY IRENE NAVARRO AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2455/2019 and HCAL 550/2023

(heard together)

[2024] HKCFI 2497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2455 OF 2019

_____________

_____________

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 550 OF 2023

_____________

_____________

(Heard Together)

______________

J U D G M E N T

______________

THE APPLICATION

1.  The 1^st applicant is the mother and the guardian ad litem of the 2^nd applicant, her daughter, aged 13, the 3^rd applicant, her daughter, aged 4 and the 4^th applicant, her son, aged 4.

2.  There are 2 separate applications for judicial reviews of the Board’s Decisions. HCAL 2455 of 2019 deals with the 1^st applicant and the 2^nd applicant. HCAL 550 of 2023 deals with the 3^rd applicant and the 4^th applicant. Since the 1^st applicant is the guardian ad litem of the 2^nd , the 3^rd and the 4^th applicants, who rely on the facts of the 1^st applicant to support their claims, the Court has ordered these 2 separate actions to be heard together.

3.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 21 August 2019 of HCAL 2455 of 2019 (“the Board’s 1^st Decision”) and Decision dated 17 January 2023 of HCAL 550 of 2023 (“the Board’s 2^nd Decision”) of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decisions”). Their joint applications rely upon the facts of the 1^st applicant.

4.  By affirmation dated 19 January 2024, the 1^st applicant applied to add her husband Khan MD Omar as a party in HCAL 550 of 2023. However, she was unable to provide the reference number of her husband’s application. Nor did she provide the court with the Notice of Decision of the Director and the Board’s Decision in respect of her husband. The Court therefore refused her application. Her husband has to make a separate application for his case.

5.  The Court fixed a hearing for the applicants to appear before it on 17 June 2024. However, the applicants were absent without prior notice to the Court.

6.  On the court’s record, the 1^st applicant had applied to the Legal Aid Department for legal assistance. Unaware of the result at the hearing on 17 June 2024, the Court adjourned the hearing to a date not before 42 days from 17 June 2024.

7.  However, the court discovered that the Legal Aid Department had given a notice dated 24 May 2024 to the Court that it had refused the 1^st applicant’s application for legal aid. In the circumstances, the Court set aside the Order for adjournment of the hearing. I shall deal with the applicants’ applications on paper.

8.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the respective Forms 86 are amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicants

9.  The applicants are Filipinos. The 1^st applicant last arrived in Hong Kong on 5 April 2017 to work as a foreign domestic helper (“FDH”), but her employment contract was pre-maturely terminated on 11 April 2017. She overstayed since 26 April 2017 and she surrendered to the Immigration Department on 9 May 2017. On 15 May 2017, the 2^nd applicant arrived in Hong Kong as a visitor. The 1^st applicant made a non-refoulement claim on behalf of herself and the 2^nd applicant on 29 June 2017. The 1^st applicant gave birth to the 3^rd and 4^th applicants on 16 October 2019 and she also made a non-refoulement claim on their behalf on 28 May 2020 and 18 June 2020. The claims were made on the basis that, if refouled, the 1^st, 2^nd, 3^rd and 4^th applicants (“the applicants”) would be harmed and killed by (i) a creditor (“the creditor”) due to the 1^st applicant default in loan payment and (ii) the 1^st applicant’s husband because of the extra-marital affairs of the 1^st applicant and (iii) the 1^st applicant’s family because the 1^st applicant had given birth to children out of wedlock.

10.  According to the 1^st applicant, she married her husband in 2011 and she gave birth to the 2^nd applicant in February 2012. In around January 2015, the 1^st applicant borrowed money from the creditor, who was the maternal aunt of her husband, in order to pay for the agency fee for working as a FDH in Hong Kong. In June 2016, the 1^st applicant returned to Hong Kong to work as a FDH. She was able to repay her loan instalments until March 2017 when her mother became sick, and she needed money to pay for her medical expenses. Since then, the creditor started demanding repayment from her via phone messenger. Eventually, after conversing with the creditor for about a month, the 1^st applicant deleted the conversation history and blocked the creditor’s future messages.

11.  The creditor then filed a complaint against the 1^st applicant with the Village Chief. She also started harassing the 1^st applicant’s mother and threatened to kill the 1^st applicant if she returned to the Philippines. The 1^st applicant’s mother did not report the threats from the creditor to the police because she was sick and did not want to incur further troubles.

12.  Meanwhile, the 1^st applicant met a man called Harry in December 2016 while working in Hong Kong and began an extra-marital affairs with him. She kept contact with Harry mainly by phone messengers and met him every other week until their relationship ended in May 2017. On 15 May 2017, the 1^st applicant’s husband brought along the 2^nd applicant to Hong Kong. It was by then that the 1^st applicant realised her husband had discovered her extra-marital affairs. The 1^st applicant’s husband was raged and left the 2^nd applicant with the 1^st applicant. He also threatened to hire someone to kill the 1^st applicant if she ever returned to the Philippines.

13.  In around 2017, the 1^st applicant met an Indian man in Hong Kong and they got married religiously in Tsim Sha Tsui Mosque on 29 August 2019. The 1^st applicant gave birth to the 3^rd and 4^th applicants with the said Indian man on 16 October 2019. When the 1^st applicant’s mother learnt about her pregnancy in around July 2019, she was very angry with the 1^st applicant for having children out of wedlock and made clear that she would never be forgiven. In around December 2019, the 1^st applicant received a message from her mother-in-law that she would file a case against her for adultery.

14.  When the 1^st applicant called her mother in March 2020, her mother told her that the creditor was still looking for her. However, she had no updates about her husband and her mother-in-law.

15.  The 1^st applicant had never sought help from the police because they were corrupted and she could not afford bribing them. The 1^st applicant considered internal relocation not viable as well because she had no relatives or friends elsewhere in the Philippines. She also believed she would face discrimination because of her social status as an unwed mother.

16.  Details of the applicants’ stories can be found in paragraph 7 of the Director’s Decision dated 22 September 2017 (“the Director’s 1^st Decision”) and paragraph 6 of the Director’s Decision dated 27 October 2020 (“the Director’s 2^nd Decision”).

HCAL 2455 of 2019

The Director’s 1^st Decision

17.  The Director considered the 1^st and 2^nd applicants’ claims in relation to the following risks:

(a)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

(c)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

(d)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

18.  By way of the Director’s 1^st Decision, the Director dismissed the 1^st and 2^nd applicants’ claims. The Director found that (i) the absence of past ill-treatment from the creditor and the 1^st applicant’s husband indicated that they had no real intention to seriously harm or kill them [14]-[17]; (ii) state protection would be available to the 1^st and 2^nd applicants upon their return [18]-[23]; (iii) internal relocation would be viable [24]-[28] and (iv) their cases failed to meet any of the requirements under BOR 2 and BOR 3 risk [29]-[34], Persecution risk [35]-[39] or Torture risk [40]-[43].

The Board’s 1^st Decision

19.  The 1^st and 2^nd applicants appealed the Director’s 1^st Decision to the Board. On 4 December 2018, the Board conducted an oral hearing.

20.  Regarding the threat from the creditor, the Board accepted the claimed amount the 1^st applicant was indebted to the creditor [60]-[61]. However, given that the 1^st applicant was a family member of the creditor, the Board considered the claimed death threats made not credible because it did not believe that (i) the creditor would refuse to vary the repayment plan; (ii) the 1^st applicant’s husband did nothing to intervene in the action of the creditor and (iii) the discussion between the 1^st applicant and the creditor failed to reach any compromise [64]-[65], [72]. In any event, the 1^st applicant’s short return trip to the Philippines and her decision to quit her job was also inconsistent with that of someone under serious financial pressure [66], [74]. In the meantime, the Board also found it implausible that the creditor would hire someone to hurt or kill the 1^st applicant because she was unlikely to take such a risk as a wealthy and successful business person [77].

21.  As for the threats from the 1^st applicant’s husband, the Board did not attach any credence as to how her husband found out her extra-marital relationship with Harry [68]. The Board also considered it unbelievable that he would continue calling the applicant’s family because he had already expressed that he wanted nothing to do with the applicant and her daughter [79]. The Board considered that the 1^st applicant’s husband simply wanted the 1^st and 2^nd applicants out of his life and hence attached no credence about the claimed death threats he made [81].

22.  Based on such findings, the Board found the 1^st and 2^nd applicants’ claims regarding the death threats made by the creditor and the 1^st applicant’s husband not credible [82]. They concluded that the 1^st and 2^nd applicants’ cases failed to meet any of the requirements under persecution risk, BOR 2 and BOR 3 risk or Torture risk [22]-[37], [84]-[95]. Furthermore, state protection and internal relocation would also be available according to the country of origin information (“COI”) [38]-[40], [96]-[107].

23.  The Board therefore dismissed the 1^st and 2^nd applicants’ appeal and confirmed the Director’s 1^st Decision.

Application for leave to apply for judicial review

24.  The applicants have filed Form 86 dated 26 August 2019 for leave to apply for judicial review of the Board’s 1^st Decision.

25.  The 1^st applicant did not raised any specific ground in her affidavit in support of their application.

DISCUSSION

26.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicants’ appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

27.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

28.  It is apparent that the applicants were not legally represented before the Board. The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020 held that in such circumstances, it is incumbent upon the Board to have separate consideration of the minor’s claim to see if there are any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation.

29.  The Court of Appeal in Re: Jasvir Singh & Ors [2021] HKCA 53, 14 January 2021, Hon Lam VP and AU JA, 14 January 2021 further considered the issue of minor where the Board might not have separate consideration on the child specific issues and held:

“33. … if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor specific non refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan .”

30.  For the reasons given above, the Board rejected the applicant’s evidence in support of her claim, i.e. fear of being harmed by her creditor or her husband if she returns to the Philippines. Although the Board had not conducted a separate assessment of the 2^nd applicant in respect of child specific issues, there is no factual basis in support of the 2^nd applicant’s claim as she relies on her mother’s claim. Furthermore, since the 2^nd applicant was born in the Philippines, there is no issue of discrimination if she returns to the Philippines. The 2^nd applicant was legally represented before the Director. Her lawyer did not raise any child specific issue for her for the Director’s consideration. I am unable to find any child specific issue, which should have brought to the Board if the 2^nd applicant were legally represented before the Board.

31.  The 1^st applicant has not raised any child specific issue before the Board. Nor had she raised any valid ground to challenge the Board’s Decision.

32.  The 1^st applicant and the 2^nd applicant fail to show that they have any realistic prospect of success in their proposed applicant for judicial review of the Board’s 1^st Decision.

CONCLUSION

33.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s 1^st Decision. Accordingly, I dismiss their joint application.

HCAL 550 of 2023

The Director’s 2^nd Decision

34.  The Director considered the 3^rd and 4^th applicants’ claims in relation to BOR 2 risk, BOR 3 risk, Persecution risk and Torture risk.

35.  By way of the Director’s 2^nd Decision, the Director dismissed the 3^rd and 4^th applicants’ claims. The Director found that the past behaviour of the creditor indicated she had no real intention to seriously cause harm or kill. As for the adultery case, there was no evidence that the 1^st applicant would be unable to receive a fair trial even if such case was filed against her by her mother-in-law. Regarding the 1^st applicant’s problem with her husband, the Director considered it to be merely a family dispute which she could solve by seeking assistance from the authorities or by staying away from him. Furthermore, the claim about suffering from discrimination was merely speculation without any concrete proof [11]-[13].

36.  In any event, (i) state protection would be available [14]-[20]; (ii) internal relocation would be viable [21]-[24] and (iii) the 3^rd and 4^th applicants’ cases failed to meet any of the requirements under BOR 2 and BOR 3 risk [25]-[30], Persecution risk [31]-[35] or Torture risk [36]-[38].

The Board’s 2^nd Decision

37.  The 3^rd and 4^th applicants appealed the Director’s 2^nd Decision to the Board. On 1 December 2021, the Board conducted an oral hearing, with the 1^st applicant appearing on behalf of the 3^rd and 4^th applicants. The 3^rd and 4^th applicants were legally represented before the Board.

38.  The Board began by considering the 3^rd and 4^th applicants’ claims that they were stateless [73]. The Board noted that their father is an Indian while their mother, i.e. the 1^st applicant is a Filipino [94]. As the 3^rd and 4^th applicants’ father had no intention to register their births with the Indian authorities, which is a perquisite for a citizenship in India, the Board was satisfied that the 3^rd and 4^th applicants could not attain Indian citizenship. On the other hand, the 3^rd and 4^th applicants had automatically acquired Filipino citizenship by virtue of their mother’s nationality as there was no requirement for registration. The Board therefore did not accept that the 3^rd and 4^th applicants were stateless [97]-[99], [107]-[108].

39.  Regarding the claimed adultery proceedings, the Board noted from the COI that the Philippines is one of the few countries that still consider adultery as criminal offences, with a maximum period of imprisonment for six years [109]. However, adultery proceedings could only be instituted by the offended party and that both the offending party together with his/her partner must be included [113]-[114].

40.  The Board then proceeded to consider the claimed discrimination that the 3^rd and 4^th applicants might face in the Philippines. In relation to their illegitimacy, the Board acknowledged that they might face some discrimination and stigma, but considered that such discrimination would not amount to persecution. They would also not be denied education, health or other services simply because of their illegitimate child status [138]-[139]. As to their religion as Muslims, COI indicated that the Philippines government had made strong efforts to address and accommodate religious issue concerning Muslims and had adopted a number of measures to protect the Islamic religion and the rights of Muslims in the Philippines [146].

41.  Furthermore, COI also showed the availability of state protection [160]-[161] and overseas migrant workers would also be offered assistance on reintegration and repatriation [164]. The Board also addressed the claim on family unity, but noted that section 11 of HKBOR precluded relying on such ground to resist removal [165]-[167]. Meanwhile, internal relocation would also be viable according to COI [176].

42.  The Board accepted that the 1^st applicant had separated with her husband and that she then formed a new relationship and gave birth to the 3^rd and 4^th applicants. Although they were precluded from applying for Indian citizenship, they were automatically citizens of the Philippines by virtue of the 1^st applicant’s citizenship [179]-[182].

43.  The Board found the claimed fear to be far-fetched and speculative because (i) an adultery proceeding could only be commenced by the 1^st applicant’s husband, but not her mother-in-law; (ii) the 1^st applicant’s husband had no contact with the 1^st applicant since 2017; (iii) there was no reason why the 1^st applicant could not communicate with the creditor to make arrangements for repayment in the future and there was no evidence showing that the creditor would harm the 3^rd and 4^th applicants and (iv) there was no evidence of threats of violence made by the 1^st applicant’s family [185]-[189]. In the meantime, the Board also reiterated that the harm arising due to family separation is not a basis to establish non-refoulement protection [192].

44.  Based on such findings, the Board concluded that the 3^rd and 4^th applicants’ case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [12]-[31], [193]-[218]. The Board therefore dismissed the 3^rd and 4^th applicants’ appeal and confirmed the Director’s 2^nd Decision.

Application for leave to apply for judicial review

45.  On behalf of the 3^rd and the 4^th applicants, the 1^st applicant as their guardian ad litem, have filed Form 86 dated 4 April 2023 to apply for leave for judicial review of the Board’s 2^nd Decision.

46.  The 1^st applicant has not raised any specific ground in her affirmation in support of this application.

DISCUSSION

47.  The 3^rd and the 4^th applicants were represented by a duty lawyer. It is obvious that the Board had carefully considered and analyzed the evidence in relation to the 3^rd and the 4^th applicants in terms of their nationalities, their status as illegitimate children, their mother’s situation of being prosecuted for adultery, prejudice, discrimination, state protection and internal relocation, if they return to the Philippines.

48.  The 1^st applicant has not been able to raise any valid reason to challenge the Board’s 2^nd Decision.

49.  There is no realistic prospect of success in the applicants’ proposed judicial review of the Board’s 2^nd Decision.

CONCLUSION

50.  I refuse to grant leave to the 3^rd and the 4^th applicants to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismissed their application.

DISPOSITION

51.  The Order made on 17 June 2024 to adjourn these matters is set aside.

52.  I refuse to grant leave to the applicants to apply for judicial review of the Boards’ Decisions. Accordingly, I dismiss their respective applications.

53.  For both actions. I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the applicant’s applications a nullity.